IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100304

Docket:
M102168

Registry: New Westminster

Between:

Shivani Sharma

Plaintiff

And

Mark Webster Didiuk and Bikram Vatis
Sharma

Defendants

Before: The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
This is an assessment of damages caused to the
plaintiff by her injuries from a motor vehicle accident on April 8, 2004 in the
Municipality of Delta, Province of British Columbia.

[2]            
The plaintiff was a front seat passenger in a
vehicle driven by her husband the Defendant Bikram Vatis Sharma, when it was
struck by a vehicle driven by the defendant Mark Webster Didiuk which backed
into the plaintiff’s vehicle while both were stopped at a stop sign.

[3]            
The defendant Didiuk has admitted full liability
for this accident and the two day trial proceeded as an assessment of the
plaintiff’s damages against him.

[4]            
The impact itself was of a minor nature. The
plaintiff’s vehicle, a 2004 Honda Civic, was damaged to the front bumper and
was repaired for the total amount of $652.31, while the Didiuk vehicle, a 1983
Pontiac Camaro, was damaged to its rear bumper, and was estimated to cost
$145.42 for repairs.

[5]            
The speed of the Didiuk vehicle at impact was
estimated by the defendant himself at five to ten miles per hour.

[6]            
The plaintiff was wearing her seat belt at the
time and says she felt a sudden jolt and was pushed back in her seat but did
not hit herself on anything in the interior of the motor vehicle.

[7]            
The accident happened at approximately 8:00 to
8:30 a.m. while the plaintiff was on her way to hairdressing school and she
continued on to school for the day. No police or ambulance attended the scene.

[8]            
When the plaintiff returned home at the end of
the day she says she was exhausted and the muscles in her neck, both shoulders
and mid to low back had tightened up. That evening she said she had more
discomfort than pain.

[9]            
Over the next one to three weeks she says she
developed pain in her neck, shoulders and mid and low back.

[10]        
She did not attend her family doctor, Dr. Herar,
for the first time until five days later on April 13, 2004, thinking that in
the interim her pain would disappear.

[11]        
Dr. Herar’s records indicate that the
plaintiff reported to him at that time of neck pain, more on the right side, with
right mid and low back pain.

[12]        
Dr. Herar referred her for chiropractic
treatments that she took 22 times over the period May 7, 2004 to October 28,
2004. These treatments offered her only temporary relief.

[13]        
The plaintiff saw Dr. Herar three more
times in 2004 when she continued to complain of neck and back pain, but
thereafter changed family doctors.

[14]        
Her new family doctor, Dr. Rayavarapu, saw
her for the first time in April 2005 with continuing complaints of ongoing neck
and back pain mainly on the right side. Her records indicate that the
chiropractic treatments had made the plaintiff’s back feel better, while her
right-sided neck pain was episodic and worse with cold temperatures.

[15]        
The plaintiff was referred for physiotherapy
which she took eight times in the period May 3, 2005 to June 8, 2005, but again
the plaintiff says this treatment only made her pain worse and so she
discontinued that treatment.

[16]        
The plaintiff is a well-educated person. She has
a Bachelor of Arts degree and Master of Arts degree in English from her native
country of India. She came to Canada in June 2002 with her husband whom she had
married in 2001.

[17]        
In Canada the plaintiff obtained a Certificate
of Business Administration from the British Columbia Institute of Technology
and thereafter entered hairdressing school in September 2003.

[18]        
This was the school that she was attending at
the time of the accident and she continued to attend that school after the
accident and completed it together with her classmates in January or February
2005, obtaining a Diploma.

[19]        
During her schooling the plaintiff says her neck
and back pain continued and she took prescription pain-killing medications in
order to continue her schooling.

[20]        
After her schooling completed she began work at
Regis Hair Salon in March 2005 and continued working there approximately
25 hours per week, which is all she says she could manage, until December 17,
2005.

[21]        
At that time she says she was laid off because
her supervisor said she didn’t have the right posture and was not doing her job
properly. The plaintiff says her neck, shoulder and back were bothering her in
performing her job, giving her pain during the day and affecting her posture
and leaving her exhausted at the end of the day.

[22]        
The plaintiff continued to experience pain in
the area of her right neck and mid back in 2005 and continued to complain to
Dr. Rayavarapu that the pain was consistent and aggravated by cold
temperatures. However, she was found to have a full range of movement in her
neck and back.

[23]        
Dr. Rayavarapu recommended massage therapy
and more regular exercise and the plaintiff took this massage therapy seven
times in the period June 15, 2005 to August 5, 2005. Again, however, it only
offered her temporary relief.

[24]        
On July 15, 2005 she told Dr. Rayavarapu
that she was generally functional with her activities of daily living.

[25]        
The plaintiff became pregnant with her first
child in 2005. After she was laid off from Regis Hair Salon in December 2005, she
joined Great Clips Hair Salon in January 2006 and worked there on an almost
full-time basis for approximately 35 hours per week until her son was born
in June 2006.

[26]        
For the year thereafter the plaintiff was on
maternity leave.

[27]        
In her first medical legal report of April 28,
2006, Dr. Rayavarapu gave a prognosis as follows:

She may continue
to experience aggravations of her neck and back pain periodically. She may
require periodic physiotherapy and massage therapy in the future. In the later
stages of pregnancy the back pain may be worsened due to the back injury. Overall
she should continue to remain functional with her activities of daily living if
she maintains regular exercise and an active lifestyle.

[28]        
The plaintiff confirms in her evidence that the
pain in her back, neck and shoulders did increase during her pregnancy. After
her son was born in June 2006 she return to Dr. Rayavarapu’s associate
complaining of continuing back and right shoulder pain and she was referred for
physiotherapy again.

[29]        
She took this second course of physiotherapy 16 times
in the period October 2, 2006 to July 18, 2007. However during this period
of time from November 6, 2006 to March 23, 2007 she took no physiotherapy
treatments because she was out of the country in that period.

[30]        
The plaintiff says she was unable to breast-feed
her son because she was unable to lift him for long enough with the pain in her
shoulder and back. She used a breast pump instead.

[31]        
She says that the grandparents, with whom she
and her husband lived, had to take on more of a physical role with her son and
he became more comfortable with them rather than with her.

[32]        
In Dr. Rayavarapu’s second report of
October 30, 2007, she gave this prognosis for the plaintiff:

She sustained
soft tissue injuries of her back, neck, and shoulders. This pain is present
several times a week. It is aggravated by her work as a hairdresser. It is also
aggravated by lifting or carrying. She has used Tylenol, heat, anti[‑]inflammatories,
physiotherapy, and massage as treatment with some variable symptoms. Her recent
pregnancy also aggravated her symptoms. Ms Sharma’s pain has become chronic
recurrent in nature. With regular strengthening and stretching exercises she
should continue to remain functional with pain. She may require future
treatments of massage, physiotherapy, and accupun[c]ture, to manage her pain. She
will likely remain prone to aggravations of her pain with prolonged standing,
lifting of her arms to shoulder height, and carrying.

[33]        
When the plaintiff completed her maternity leave
in or about June 2007 she returned to work at Great Clips Hair Salon and she
continued to work there full-time, five days per week, until her second child,
a daughter, was born in or about September 2009.

[34]        
The plaintiff says she could not breast-feed her
daughter either.

[35]        
At the time of trial in December 2009 she was on
her second maternity leave which is to end in September 2010. She says she
plans to return to work at that time as a hairdresser but says if she is not
physically capable she may have to return to school, although she says she has
no resources to do so.

[36]        
The final medical legal report of Dr. Rayavarapu
is dated March 12, 2009. At that time she said there had been no change in the
plaintiff since the previous report approximately 15 months prior, and the
plaintiff remained functional with pain.

[37]        
Her prognosis at that time remained the same,
that with stretching and strengthening exercises the plaintiff should be able
to maintain her physical condition and continue to be functional with pain.

[38]        
Dr. Adrian, a physical and rehabilitation
specialist, did an assessment of the plaintiff on February 6, 2009 at the
request of plaintiff’s counsel.

[39]        
The plaintiff indicated to him that her symptoms
were generally more noticeable in cold weather.

[40]        
On examination Dr. Adrian found a full
range of motion in her neck with pain symptoms and a full range of motion of
her lumbar spine without pain symptoms. He also observed a full range of motion
in her thoracic spine without pain.

[41]        
He did find tenderness on palpation over the
middle and lower lumbar spine segments.

[42]        
She had full range of motion of her shoulders
but motion of her right shoulder reproduced pain involving the base of her
neck.

[43]        
His diagnosis was of chronic mechanical neck and
lower back pain and he said that further recovery was unlikely.

[44]        
In his opinion she will permanently experience
difficulties performing activities that require prolonged or repetitive
reaching, prolonged static positioning involving her spinal column, heavy or
repetitive lifting, and prolonged carrying.

[45]        
He encouraged her to continue with her home
exercises and said that during flare-ups of her symptoms she might benefit from
passive rehabilitation such as massage, heat and ice, but that it would not
likely provide her with any long-term improvement.

[46]        
The plaintiff had a previous accident in the
year 2000 when she fell off a scooter while in India. The scooter was
travelling at a speed of 30-40 kilometres per hour and when she fell off she
says she hurt both her arms, her knees and her back.

[47]        
She says she didn’t need to see a doctor at that
time as her injuries quickly cleared up except for a little discomfort in her
right shoulder that came on in the winter-time. She says she had no further
back problems after the first month.

[48]        
In her evidence at trial she says that the
discomfort that lingers in the winter-time is to her neck and right shoulder.

[49]        
In a statement she gave to the Insurance
Corporation of British Columbia after this accident, she said that before the
accident she continued to have off and on discomfort in her right shoulder and
mid to low back especially in the winter, although she was pretty well
recovered from her previous injuries by the time of this accident.

[50]        
In that statement of April 23, 2004 she said
that her back and shoulder felt at that time like when she would have a relapse
of her prior injury.

[51]        
In a medical note of December 10, 2002 made by Dr. Herar,
he recorded that the plaintiff had recurrent right-sided neck pain for the
prior two years.

[52]        
When she saw Dr. Adrian she told him that
when she fell from the scooter she experienced pain symptoms involving her
arms, legs and neck, that these symptoms mostly resolved over the course of a
few weeks’ time, but she continued to experience ongoing minor, occasional
episodes of neck discomfort during periods of cold weather which did not affect
her functional activity levels.

[53]        
The plaintiff says that prior to this accident
she was able to do all the jobs around the house including cooking, cleaning,
yard work and house renovations.

[54]        
After this accident she says she has tried to
carry out these tasks but her neck and back get sore and she has to stop when
she feels too much pain.

[55]        
She says she has to ask her in-laws for help
although she agrees that her mother-in-law helped her somewhat with the
household chores prior to this accident.

[56]        
She used to enjoy biking, swimming, long walks
and long drives, but since the accident she says she has done none of these
activities because of her injuries and she has only taken 15-minute walks in
the last two months because of her back pain.

[57]        
She also says she used to vegetable-garden but
has not continued that activity either.

[58]        
She does agree, however, that her child duties
have also affected her ability to engage in recreational activities somewhat.

[59]        
The plaintiff says that when she enrolled in the
hairdressing school in 2003 her plan upon graduation was to get some experience
in a hair salon for approximately six months and then open her own hair salon
business.

[60]        
Presently however she says she no longer has
these plans because she does not think she can handle the long hours as an owner
with her injuries.

[61]        
The plaintiff says that she was referred to an
occupational therapist in February 2008 by her counsel and was put through a
physical evaluation for six hours involving reaching, standing and pulling.

[62]        
In an affidavit of December 10, 2005 in this
action, sworn for the purpose of obtaining an adjournment of the trial, the
plaintiff said she had been told by her counsel that she has an impaired
earning capacity claim and the physical capacity evaluation was to be performed
on February 8, 2008 as a necessary step in allowing her counsel to assess the
claim and to present evidence to the court in support of its validity and
quantum.

[63]        
No occupational therapist report was tendered
into evidence at trial and defence counsel requests an adverse inference by the
Court be drawn against the plaintiff by its absence.

[64]        
Plaintiff’s counsel explains to the Court that
the report was not commissioned because the testing was not conclusive and it
was too costly to order a report.

[65]        
Defence counsel arranged for the plaintiff to be
assessed by Dr. Boyle, an orthopaedic surgeon, and his report of June 29,
2008 was filed at trial and he gave evidence as well.

[66]        
In his report Dr. Boyle concluded that the
plaintiff had suffered a minor myofascial strain to her cervical spine with
injury to ligaments, tendons and muscles, and that medical management for this
should be in the form of stretching and strengthening exercises and the use of
anti-inflammatories.

[67]        
He also said she may have suffered a very minor
strain to her lumbar spine although she was asymptomatic at the time of his
examination.

[68]        
He concluded there was no disability associated
with her function as a hairdresser from 2005 onwards and the myofascial strain
that she would have suffered would have been very mild at most with a very
transient and limited effect on her.

[69]        
In his opinion there is no disability associated
with the events surrounding the motor vehicle accident and no vocational or
avocational limitations to be placed on her, with no need for any passive
modalities of treatment.

[70]        
At trial he agrees that pain is usually
considered chronic after two years, and that soft tissue injury may not exhibit
any objective signs. Even if the soft tissue injuries heal in three months they
can still produce current pain.

[71]        
However, in his opinion the probability that the
plaintiff has these complaints ongoing is very low.

Analysis

Non-pecuniary damages

[72]        
I accept that the Court should be very careful
in assessing damages for soft tissue injuries when there is little or no
objective evidence of continuing injury and when complaints of pain persist for
long periods of time extending beyond the normal or usual recovery time (Price
v. Kostryba, [1982] B.C.J. No. 1518; 70 B.C.L.R. 397).

[73]        
I also accept that the plaintiff’s complaints of
continuing pain from her soft tissue injuries have exceeded the expected time
period for recovery.

[74]        
I conclude that Dr. Boyle is saying in his
own words that he does not believe the plaintiff when she says she still has
continuing pain from injuries in this motor vehicle accident, almost six years
later, as he found no basis for that in his examination and in his general
understanding of the effects of minor soft tissue injuries.

[75]        
However, the fact is that I do accept the
plaintiff’s evidence when she says she is still suffering pain from soft tissue
injuries that she sustained in this motor vehicle accident of April 8, 2004.

[76]        
I therefore reject the opinion of Dr. Boyle
that she does not have any further effects from those injuries, and I will
assess the plaintiff’s damages on the basis that she continues to suffer some chronic
pain from these injuries caused by the motor vehicle accident.

[77]        
I will also take into account the pre-existing
injuries that she sustained from the scooter accident and the effects that
those injuries have had on her since then, because the plaintiff is not
entitled to be put back in any better position as far as her health was
concerned as she had just prior to this motor vehicle accident.

[78]        
This is a principle of law explained by the
Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458,
and explained further by the Court of Appeal in Zacharias v. Leys, 2005
BCCA 560, requiring a pre-existing condition to be taken into account in
assessing damages where there is a “measurable risk” that it would have
detrimentally affected the plaintiff in the future regardless of the
defendant’s negligence.

[79]        
The evidence is that the plaintiff did have some
ongoing active complaints of pain from her pre-existing scooter injuries, and
the relevant principle to apply is the crumbling skull principle that is
explained in Athey.

[80]        
The evidence as to what injuries the plaintiff
received from the scooter accident in India in 2005 and continued to suffer
from thereafter is not completely clear.

[81]        
At trial she says she fell off the scooter and
hurt both her arms, knees and back. She says these injuries quickly cleared up
but she continued to experience a little discomfort in her right shoulder and
neck in the winter-time, but no further back problems.

[82]        
However in the statement she gave to the
Insurance Corporation of British Columbia after the accident, she said that
prior to this motor vehicle accident she had discomfort in her right shoulder
and mid to low back, especially in the winter.

[83]        
In Dr. Herar’s medical note of December 10,
2002 he recorded that she had recurrent right-sided neck pain for the previous
two years.

[84]        
She also told Dr. Adrian that she had
ongoing minor occasional episodes of neck discomfort during periods of cold
weather.

[85]        
Putting all these pieces of evidence together it
is my conclusion that at the time of the motor vehicle accident on April 8,
2004, the plaintiff was already suffering from some intermittent neck, right
shoulder and mid to low back pain, principally in cold weather.

[86]        
In this accident of April 8, 2004, the plaintiff
says she suffered injury to her neck, shoulder and mid to low back, the same
areas affected in the scooter accident.

[87]        
I consider it a measurable risk that her
pre-existing injuries to these areas would have continued to affect her after
the time of this motor vehicle accident, regardless of this accident and the
defendant’s negligence, and I will take this into account in assessing her
non-pecuniary damages.

[88]        
I do not find the cases cited by plaintiff’s
counsel as the appropriate range for damages to be particularly helpful.

[89]        
It is difficult at the best of time to discern
from reading other reasons for judgment the degree of pain and suffering that
the plaintiffs in those cases were continuing to experience.

[90]        
It appears to me from considering the awards
made in Deglow v. Uffelman, 2001 BCCA 652 ($75,000); in Gibbs v.
Skemp, [1998] B.C.J. No. 680 ($55,000); Paller v. Paller, 2004 BCSC
977 ($60,000), that the injuries in those cases were more serious and more
seriously affecting the plaintiffs in terms of function than the seriousness
and effect on the plaintiff of her injuries from this motor vehicle accident.

[91]        
It may be that the plaintiff here is more of a
stoic and non-complainer than the plaintiffs were in those cases, but I must
accept the evidence as it was given at the trial here.

[92]        
I conclude the plaintiff’s present pain is
intermittent and not continuous and that it depends on what activity she
carries out and for how long she carries out those activities.

[93]        
She was able to continue her schooling full-time
after the accident and was able to continue thereafter working close to
full-time or at full-time at her hairdressing employments.

[94]        
Her overall function has not been as adversely
affected as in the cases the plaintiff submits. This is by comparison to Gibbs,
for example, where the plaintiff had to give up full-time employment for
part-time employment and was taking a lot of medication for her pain. That is
not the situation with the plaintiff here.

[95]        
Defence counsel cites decisions that have
assessed damages for personal injuries in the range of $10,000 to $15,000, but
these are decisions that appear to be based upon greater recover to the
plaintiffs than in the case of the plaintiff here, and the defendants’ range appears
to be premised upon an acceptance of Dr. Boyle’s opinions that I have
rejected.

[96]        
In Kain v. Kirkman, 2006 B.C.J. No. 3084;
2006 BCSC 1770, the plaintiff, a 30‑year old woman (the plaintiff here
was 30 years old on December 30, 2009), was awarded $15,000 for non-pecuniary
damages five years after her accident in 2001. She missed three days of work
and took three months of physiotherapy and medication on an occasional basis
for three months. Her complaints persisted at trial and she was required to
make modest modifications to her day to day activities.

[97]        
She was functioning satisfactorily at work
without a need to significantly curtail her social activities.

[98]        
Here I accept that the plaintiff’s ability to
continue to work full-time has been accomplished with some difficulty because
of her injuries as she has to stand and reach for long periods of time which
brings about pain and discomfort and exhausts her by the end of the day. Her
social activities have also been curtailed.

[99]        
I accept the prognosis of Dr. Rayavarapu
and after reviewing the cases cited by both counsel, I consider a proper award for
the plaintiff for non-pecuniary damages attributable to this motor vehicle
accident to be $30,000. In assessing non‑pecuniary damages in this amount
I have already reduced the full value of her injuries by $10,000 to account for
the measurable risk of her pre-existing injuries continuing to affect her
regardless of this accident.

Past
Income Loss

[100]    
The plaintiff says that after her schooling she
could only work 25 hours a week at Regis Hair Salon because of her injuries,
rather than a full week.

[101]     Her counsel calculates her loss to be $2,568 until she was laid off
in mid December 2005.

[102]     She also claims for the last two weeks of December 2005 after she
was laid off and before she was able to commence work at Great Clips in January
2006.

[103]     I am not satisfied with the quality of the evidence related to why
she was laid off in mid December 2005 without evidence from the employer when
the employer was cooperative enough to produce a letter of March 19, 2009
confirming the plaintiff’s hours and earnings made at Regis.

[104]     I will allow her claim in the amount of $1,926 which again is a
reduction of 25% from the claim of $2,568.

Loss of Income-Earning Capacity

[105]     A loss of a future income-earning capacity is a loss of a capital
asset.

[106]     As Madam Justice Huddart said in Rosvold v. Dunlop, 2001
B.C.J. No. 4, if a plaintiff’s permanent injury limits his or her capacity to
perform certain activities and consequently impairs his or her income-earning
capacity, he or she is entitled to compensation.

[107]     The standard of proof for such an award is a real and substantial
possibility and not mere speculation.

[108]    
In Brown v. Golaiy (1985), 26 B.C.L.R.
(3d) 353, Finch J. (as he then was) said the following factors should be
considered relevant on this claim:

1.         whether
the plaintiff has been rendered less capable overall from earning income from
all types of employment;

2.         whether
the plaintiff is less marketable or attractive as an employee to potential
employers;

3.         whether
the plaintiff has lost the ability to take advantage of all job opportunities
which might otherwise have been open to him or her, had she or he not been
injured; and

4.         whether the
plaintiff is less valuable to himself or herself as a person capable of earning
income in a competitive labour market.

[109]     The plaintiff says she had planned to open up her own hairdressing
salon shortly after finishing the hairdressing school, if not for the injuries
in this accident.

[110]     She does not consider that plan to be feasible now because she
considers that her days would be too long and too tiring for her with her
injuries.

[111]     No evidence has been produced of whether the plaintiff would have
been financially able to open her own salon in any event nor what it might have
produced for her by way of income.

[112]     Defence counsel seeks an adverse inference against any award due to
the fact that the plaintiff did attend on an occupational therapist in February
2008 for this claim, and yet no report of that occupational therapist was
submitted at trial.

[113]     As stated, plaintiff’s counsel offers the explanation to the Court
that the testing was inconclusive and it was too expensive to commission a
report.

[114]    
Sopinka and Lederman in The Law of Evidence
in Canada, 2nd Ed., describes the principle at para. 6.321:

In civil cases,
an unfavourable inference can be drawn when, in the absence of an explanation, a
party litigant litigant … fails to call a witness who would have knowledge of
the facts and would be assumed to be willing to assist that party. In the same
vein, an adverse inference may be drawn against a party who does not call a
material witness over whom he or she has exclusive control and does not explain
it away. Such failure amounts to an implied admission that the evidence of the
absent witness would be contrary to the party’s case, or at least would not
support it.

[115]     I am prepared to accept plaintiff’s counsel’s explanation for why a
report was not commissioned from the occupational therapist. I also accept his
explanation that the testing was inconclusive which in itself is not helpful to
the plaintiff.

[116]     I conclude that no adverse inference should be drawn that the
occupational therapist’s opinion would have been adverse to the plaintiff’s
claim, but I do conclude that it would not have been an opinion that would
support it.

[117]     The plaintiff is left with her own evidence and on that evidence I
consider that she is entitled to some award for this loss.

[118]     I propose to give her the equivalent of what would be one year’s
annual income as a hairdresser, as an award for this loss, again discounted by
25% for the substantial risk of her pre-existing injuries affecting this claim
regardless of the motor vehicle accident.

[119]     One year’s income as a hairdresser appears to be in the order of
$15,000 and taking 25% off that figure I arrive at an award of $11,250 for her
loss of income-earning capacity.

Future Care Costs

[120]     The plaintiff claims an uncertain figure for the prospect of having
to take further physiotherapy or massage therapy in the future.

[121]     Plaintiff’s counsel concedes that it is somewhat speculative as to
the extent of the claim, and I agree, particularly where physiotherapy and
massage therapy has not provided to the plaintiff any long-lasting relief to
date and when it is only recommended as a possibility when her complaints flare
up.

[122]     I find the entire claim to be too speculative to base an award on
and I deny this claim.

Special
Damages

[123]    
The plaintiff submits invoices for physiotherapy/chiropractic/massage
and medication expenses, as well as mileage charges to attend these therapies
and her physicians.

[124]     In addition she claims $107.32 for a special mat cushion she
purchased for work purposes to protect her back. She admits that this was not
discussed with her doctors.

[125]     I am prepared to allow these claims in full as being due to the
injuries she sustained in this motor vehicle accident.

[126]     In my view it is not appropriate to reduce this award for a
substantial risk her pre-accident injuries may have led to these expenses
regardless of the accident, because these are expenses specifically directed to
treatment for the injuries in this accident.

[127]     I allow this claim in the amount of $1,942.63.

[128]     In summary, I award as against the defendant Didiuk the following
amounts:

a)       non-pecuniary
damages of $30,000;

b)       past
income loss of $1,926;

c)       loss of
income-earning opportunity of $11,250;

d)       special
damages of $1,942.63.

[129]    
The plaintiff will have her costs throughout.

“The Honourable Mr. Justice Truscott”